October 2007

Leaving ConAgra no room to deny the obvious, according to the CDC, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states. To date, three of these patients’ pot pies have yielded Salmonella I4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern. I guess that is more than a “smoking gun,” but a smoking pot pie.

Most people infected with Salmonella develop diarrhea, fever, and abdominal cramps 12–72 hours after infection. Infection is usually diagnosed by culture of a stool sample. The illness usually lasts 4 – 7 days. Although most people recover without treatment, severe infections may occur. Infants, elderly persons, and people with impaired immune systems are more likely than others to develop severe illness. In severe infection, Salmonella spreads from the intestines to the bloodstream and then to other body sites, and death can occur if the person is not treated promptly with antibiotics.

To date we have been contacted by over 100 people who believe they have become ill as a result of eating ConAgra Banquet Pot Pies.  Of those thus far we have been able to confirm nearly 20 as suffering from a Salmonella I 4,[5],12:i:- infection.  Three lawsuits have been filed to date.

Beef recalls raise concerns about food safety

Jeffrey Gold, AP Business Writer (a.k.a. “E. coli Guy”) interviewed the husband and father of two of my clients in the Topps E. coli case:

‘Food is being pushed out at such a rapid pace to keep up with demand, the product is not as safe as it could be. And we’re risking human life.’
—Keith Goodwin

Topps eventually issued a recall Sept. 25, and then expanded it Sept. 29 to include all frozen patties it had made in the past year—21.7 million pounds—the second-largest beef recall in U.S. history. Much of the meat had already been eaten, however, and illness in at least 40 people in eight states has been linked to the Topps hamburgers.  Keith Goodwin said the victims include his wife and a son, and wondered if the timing of the recall was at fault. He said they ate Topps hamburgers at a family picnic Sept. 15 in upstate New York, more than a week after authorities had evidence that Topps patties were contaminated.

“If the public had been made aware of that, a lot of these illnesses would have been avoided,” said Mr. Goodwin, of Groton, N.Y., who teaches at the town’s elementary school. He said his wife, Kristin, 34, was hospitalized for two days, while his son Lucas, 8, suffered kidney failure and was hospitalized for eight days. “The whole ordeal has been very scary,” Goodwin said.

Jeff Gold, AP Business Writer in New Jersey, has continued to dig into the complete failure of the “voluntary recall” system to get this E. coli – contaminated Topps hamburger off store shelves. I posted nearly a week ago when reports first surfaced that the product was still being sold a month after Topps issued a recall (and went out of business). So, who is responsible for removing E. coli – contaminated meat off store shelves?  Mr. Gold’s story:

State inspectors find more recalled meat at New Jersey stores

Meat recalled a month ago that could be contaminated with a potentially fatal bacteria was found in seven northern New Jersey stores, state consumer safety officials said Tuesday. Inspectors in the past week have seized 138 boxes of frozen hamburgers made by Topps Meat Co., which issued a nationwide recall on Sept. 29 for 21.7 million pounds of frozen patties.

Greater New York Frozen Food Distribution Co. Inc., of New York, was subpoenaed last week. A spokesman for the company said Tuesday that no meat was delivered after the recall. "The meat was delivered before the recall, on Sept. 10," spokesman Frank Conner said. "We are one of many companies that delivered the meat before the recall. We stopped delivering the meat as soon as we heard about the recall. We have no control over what a grocery store owner does with his stock."

"Recall," that it has been reported that there are at least three "genetic fingerprints" of E. coli O157:H7 (potentially meaning that the contamination at Topps came from multiple sources – at least three) that has been found in ill people and in left over product.  One of those fingerprints was found in a Canadian Meat Plant (now also in bankruptcy) that was the source of both meat to Topps and to the death of one Canadian and the sickening of 44 others this past summer.  It will be interesting if the paperwork and grinding records at Topps allows for the "traceback" of all genetic fingerprints to the source.

Recalled Pot Pie product:
* Banquet
* Albertson’s (sold at Albertson’s)
* Food Lion (sold at Food Lion)
* Great Value (sold at Wal-Mart)
* Hill Country Fare (sold at HEB)
* Kirkwood (sold at Aldi)
* Kroger (sold at Kroger)
* Meijer (sold at Meijer)
* Western Family (now discontinued; previously sold at a variety of small retailers)

The numbers keep rising from the CDC. Between January 1, 2007 and October 29, 2007, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), Arkansas (4), California (18), Colorado (9), Connecticut (7), Delaware (5), Florida (2), Georgia (2), Idaho (11), Illinois (7), Indiana (3), Iowa (1), Kansas (4), Kentucky (9), Massachusetts (7), Maryland (7), Maine (2), Michigan (3), Minnesota (7), Missouri (18), Montana (6), Nevada (6), New York (10), North Carolina (2), Ohio (11), Oklahoma (1), Oregon (4), Pennsylvania (18), Tennessee (6), Texas (4), Utah (12), Virginia (9), Vermont (2), Washington (27), Wisconsin (24), Wyoming (3). Their ages range from <1 to 89 years with a median age of 18 years; 51% of ill persons are female. At least 65 people have been hospitalized.

Bill Marler, guest barfblogger: Suing the church over E. coli O157:H7?

When Nebraska Beef first raised the issue that it intended to sue the Salem Lutheran Church for “mishandling” its E. coli O157:H7 contaminated meat – I laughed. I then calmly tried to respond that the Meat Industry, that makes a profit off of selling “USDA Inspected Meat,” couldn’t blame the consumer if the product actually contains a pathogen that can severely sicken or kill a bunch of nice older ladies at a church supper. What other product in the United States would a manufacturer expect consumers to fix themselves before they used it?

The reply to my calm response was “the consumer should know that meat may contain bacteria and they are told to cook it.” My calmness faded. Think about the little labels on meat that you buy in the store – the ones that tell you to cook the meat to 160 degrees – of course they also say USDA inspected too. However, the labels do not say:

“The USDA inspection means nothing. This product may contain pathogenic bacteria that can severely sicken or kill you and/or your child. Handle this product with extreme care.”

I wonder why the Meat Industry does not want a label like that on your pound of hamburger? It knows that the label is truthful. Do you think it might be concerned that Moms and Dads would stop buying it? The day the industry puts a similar label on hamburger is the day that I will go work for them.

The reality is that the Meat Industry cannot assure the public that the meat we buy is not contaminated. So, instead of finding a way to get cattle feces out of our meat, they blame grandparents (and presumably all the teenagers that work at all the burger joints in America) when children get sick.

Consumers can always do better. However, study after study shows that, despite the CDC estimated 76 million people getting sick every year from food borne illnesses, the American public still has misconceptions and overconfidence in our Nation’s food supply.

According to a study by the Partnership for Food Safety Education, fewer than half of the respondents knew that fresh vegetables and fruits could contain harmful bacteria, and only 25% thought that eggs and dairy products could be contaminated. Most consumers believe that food safety hazards can be seen or smelled. Only 25% of consumers surveyed knew that cooking temperatures were critical to food safety, and even fewer knew that foods should be refrigerated promptly after cooking. Consumers do not expect that things that you cannot see in your food can kill you.

Consumers are being blamed, but most lack the knowledge or tools to properly protect themselves and their children. The FDA has stated, “unlike other pathogens, E. coli O157:H7 has no margin for error. It takes only a microscopic amount to cause serious illness or even death.” Over the last few years our Government and the Meat Industry have repeatedly told the consumer to cook hamburger until there is no pink. Yet, recent university and USDA studies show meat can turn brown before it is actually “done.” Now the consumer is urged to use a thermometer to test the internal temperature of the meat. However, how do you use one, and who really has one?

Many consumers wrongly believe the Government is protecting the food supply. How many times have we heard our Government officials spout “The US food supply is the safest in the world.”

Where is the multi-million dollar ad campaign to convince us of the dangers of hamburger, like we do for tobacco? The USDA’s FightBAC and Thermy education programs are limited, and there are no studies to suggest that they are effective. Most consumers learn about food safety from TV and family members – If your TV viewing habits and family are like mine, these are highly suspect sources of good information.

The bottom line is that you cannot leave the last bacteria “Kill Step” to a grandparent or to a kid in a fast food joint. The industry that makes billions off of selling meat must step up and clean up their mess. They can, and someday will, if I have anything to say about it. That day will come much faster if they start working on it now, and stop blaming the victims.

Jane Genova of Law and More and I have had several conversations about the policy and personal implications to what Jane calls “The Case of the Last Supper Flings Open Pandora Box of Liability Issues.”

And from Curly Dog Blog

I had a nice chat with Neil Waugh of the Edmonton Sun yesterday about the twisted trail of E. coli from Canada. I am hurt (not really) that he called me a “legal vulture.”

Fallout from ‘dirty’ Alberta beef plant felt on both sides of the border

According to Mr. Waugh:

Ranchers Beef Ltd. of Balzac collapsed on Aug.15 after company president Tony Martinez reported in a court affidavit that his outfit was "in the midst of a severe liquidity crisis". In other words it was broke. And likely would have stayed that way if the United States Department of Agriculture hadn’t blown the whistle on what Ranchers and the feds’ controversial Canadian Food Inspection Agency were doing – or apparently NOT doing -last summer. Which might or might not have resulted in the death of "one elderly individual" from E. coli poisoning, another 44 cases in Canada, plus 40 cases with 26 "known hospitalizations" as of last Friday in the U.S.

The above is shocking, however, here is the most ominous part, Ranchers was funded in large part by the Canadian Government:

The company business plan was "developed in the wake of the 2003 BSE crisis," Martinez told the court, as a result of the "near decimation" of the Canadian cattle industry when the U.S. border was closed. And it wasn’t just a brainwave of 45 unidentified ranchers plus Sunterra Foods and Picture Butte feedlot kingpin Cor Van Raay. In an attempt to "ameliorate the reliance" on U.S. markets, the Alberta and federal governments "developed policies to encourage construction of Canadian-based meat processing facilities." The feasibility study costs were split between the partners and the Alberta Tories. Then the taxpayers’ grease really started to roll. There was a $46.5-million loan from Alberta Treasury Branches, the feds’ Business Development Bank and the National Bank of Canada. A $20-million "credit enhancement" from the federal ag department added to the taxpayers’ exposure. The Alberta Agricultural Financial Services also kicked in $9.35 million in "credit facilities" so investors could "purchase" company preferred shares.

Now Mr. Waugh tries to hurt my feelings (assuming I actually have any):

And now there are legal vultures hovering over the border planning on following the DNA fingerprints all the way back to the Alberta Tories and their BSE Bingo boondoggle. "We will clearly have to look at additional assets," said Seattle lawyer Bill Marler, who has already filed a class-action suit against Topps. "We’re going upstream looking at who supplied the meat," said Marler, who has already collected more than $250 million in food poisoning litigation. "Who owns them and what’s their backing."

Hey, do I get to wear a wig when I go to Canada?

In one of the boldest, yet boneheaded, moves I have ever seen in 15 years of litigating E. coli O157:H7 cases, after we sued it, Nebraska Beef filed a third party complaint against the Salem Lutheran Church of Longville, Minnesota claiming, among other things:

That, upon information and belief, an environmental assessment of the church kitchen and food preparation procedures by the Minnesota Department of Health indicated that there was a high potential of cross-contamination between the ground beef [filled with pathogenic cow shit] and other foods during food preparation.

That, upon information and belief, the damages sustained by the Plaintiff[s], if any, [one died of E. coli-related complications, and one suffered acute kidney failure] are the direct and proximate result of the negligence and/or other fault for tortuous conduct of Third-Party Defendant Salem Lutheran Church.

We have the honor of representing several of the folks and families who were sickened and died in this needless outbreak caused by Nebraska Beef’s E. coli contaminated beef. In late July and early August 2006, the Minnesota Department of Health (MDH) received three E. coli O157:H7 stool isolates from residents of, and visitors to, Longville, Minnesota. Pulsed-field gel electrophoreses (PFGE) patterns for all three were indistinguishable, and the pattern had never been seen before in Minnesota. At the same time, MDH learned of an outbreak of gastrointestinal illnesses among members of the Salem Lutheran Church in Longville. The church had served meals on July 10 and 19, and multiple congregation members subsequently fell ill with cramps and bloody diarrhea.

The MDH opened an epidemiological and environmental health investigation of the three confirmed E. coli O157:H7 illnesses and the church outbreak. MDH obtained the member directory from the church and interviewed parishioners to obtain information concerning their attendance at church events along with a general food and activity history. In addition, an MDH sanitarian visited the Salem Lutheran Church to conduct an environmental assessment of the kitchen where the food for the July 19 meal had been prepared. The Minnesota Department of Agriculture (MDA) contacted local grocery stores and restaurants to obtain information on the type and source of beef products involved.

MDA and MDH learned that ground beef used to make meatballs for the church meal, as well as the ground beef purchased by numerous area restaurants, where others were sickened, was purchased at Tabaka’s Supervalu. On July 17, members of the church had purchased 40 pounds of ground beef from the Supervalu. MDA conducted an on-site inspection at the store on August 7, 2006.

MDA conducted a traceback of the ground beef purchased at the Supervalu and used in the July 19 meal. The store had received approximately 1,900 pounds of chuck rolls from distributor, Interstate Meat on July 10. The majority of the chuck rolls were ground into ground beef at the Supervalu. The Supervalu sold ground beef from the July 10 shipment to three Longville restaurants in the same time period as the sale to church members.

The MDA traceback of the chuck rolls from Interstate Meat revealed that the source of the chuck rolls delivered to the Supervalu was the Nebraska Beef processing plant. In addition to this, the USDA reported that a sample of beef trimmings collected on June 14, 2006 at Nebraska Beef cultured positive for E. coli O157:H7, and that the isolate was indistinguishable by PFGE analysis to the outbreak strain.

Ultimately, MDH concluded that:

• “There was an outbreak of E. coli O157:H7 infections among members of the Longville, Minnesota community.
• Ground beef from Tabaka’s Supervalu was the “source of E. coli O157:H7 for this outbreak.”
• “The isolation of the rare outbreak PFGE subtype of E. coli O157:H7 from a sample of beef trimmings from a USDA-inspected plant in the weeks prior to the outbreak suggests that the chuck rolls that were used to produce the ground beef at the store were likely already contaminated when received by the store.”
• “…records that were available from the Tabaka’s Supervalu and [Interstate Meat] suggested that the ultimate source of the implicated chuck rolls was [Nebraska Beef].

Nebraska Beef sues a church for serving its E. coli contaminated meat (that was also served in restaurants that people were sickened in too) – shame on you Nebraska Beef.

Full disclosure – I was an acolyte in a Lutheran Church growing up.  Not only is there no legal reason for Nebraska Beef to sue the church in this instance – my mom (age 80) and dad (age 78) would have killed me if I had.

From the Wall Street Journal –  Law Blog

From the Minneapolis Start Tribune

Meat plant sues Longville church over E. coli outbreak

State health officials, meanwhile, took genetic samples of the E. coli found in Minnesota victims and sent those to the CDC as well, leading to a match with the Nebraska plant, according to Marler.

"The reality is they cannot hide from the genetic fingerprint that was found at their plant," said Marler. He said he plans to subpoena the USDA to release the genetic fingerprint tying Nebraska Beef to the Longville outbreak.

State epidemiologist Kirk Smith said he also believes that Nebraska Beef was the source, wondering why they would file a lawsuit blaming the church if they weren’t.

"If they’re not involved in this, why do they care?" he asked.

Case of Volunteer Church Cooks & Alleged Contaminated Meat – Can Blow Up into Landmark Liability Issues

Bill Marler featured in Wall Street Journal Law Blog again

– Continue Reading News Coverage:

Continue Reading Nebraska Beef Sues Minnesota Church

When they are mixed together at ConAgra?* (hopefully, people recall the TV ads of a few years ago – "you have chocolate in my peanut butter.")

– Between January 1, 2007 and October 29, 2007, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states.  Illnesses began January 2007 and have continued through at least October 2007.

Investigation of Outbreak of Human Infections Caused by Salmonella I 4,[5],12:i:-

Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), Arkansas (4), California (16), Colorado (7), Connecticut (6), Delaware (5), Florida (2), Georgia (2), Idaho (8), Illinois (6), Indiana (3), Kansas (3), Kentucky (8), Massachusetts (6), Maryland (7), Maine (1), Michigan (3), Minnesota (7), Missouri (16), Montana (4), Nevada (6), New York (10), Ohio (10), Oklahoma (1), Oregon (3), Pennsylvania (17), Tennessee (6), Texas (4), Utah (12), Virginia (9), Vermont (2), Washington (17), Wisconsin (23), Wyoming (3). Their ages range from <1 to 87 years with a median age of 20 years; 51% of ill persons are female. At least 50 people have been hospitalized. No deaths have been reported.  State health departments are collecting and testing pot pie products recovered from patients’ homes. To date, one pot pie yielded Salmonella I 4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.

So far, the CDC has reported that the other ConAgra Salmonella outbreak has held fast at 628 cases in 47 States.

Multistate Outbreak of Salmonella Serotype Tennessee Infections Associated with Peanut Butter — United States, 2006–2007

In November 2006, public health officials at CDC and state health departments detected a substantial increase in the reported incidence of isolates of Salmonella serotype Tennessee. In a multistate case-control study conducted during February 5–13, 2007, illness was strongly associated with consumption of either of two brands (Peter Pan or Great Value) of peanut butter produced at the same plant. Based on these findings, the plant ceased production and recalled both products on February 14, 2007. The outbreak strain of Salmonella Tennessee subsequently was isolated from several opened and unopened jars of Peter Pan and Great Value peanut butter and from two environmental samples obtained from the plant. As of May 22, 2007, a total of 628 persons infected with an outbreak strain of Salmonella serotype Tennessee had been reported from 47 states since August 1, 2006. on February 13, 2007.  Subsequent laboratory testing of leftover peanut butter from patients was performed at state public health laboratories and CDC. Salmonella Tennessee with a PFGE pattern matching one of the outbreak strains was isolated from 21 opened and unopened peanut butter jars with production dates ranging from July 2006 to December 2006.

I am not an owner or stockholder of ConAgra (yet, anyways).  However, if I was, here are a few questions I would ask:

1.  What the hell is going on with food safety and quality assurance?

2.  Why to date have no Salmonella culture positive cases from either outbreak been settled despite spending millions of dollars on legal defense fees?

One other thing, it is clear that the numbers the CDC cites as cases related to Pot Pies (238) and to Peanut Butter (628) are gross undercounts.  According to AC Voetsch, “FoodNet estimate of the burden of illness caused by nontyphoidal Salmonella infections in the United States,”Clinical Infectious Diseases 2004;38 (Suppl 3):S127-34.  The real numbers are some 38.6 times higher, or 9,187 ill in Pot Pies and 24,241 ill in Peanut Butter.

*  I am not implying that Reese’s Peanut Butter has anything to do with ConAgra’s mess.

I’m a bit confused. Yesterday it was reported that Ranchers Beef Ltd (now out of business) was both the source of an E. coli outbreak in the United States that had sickened at least 40 tied to the consumption of Topps Meat (also out of business) AND 44 ill persons and 1 death in Canada.  See, "Topps story continues to grow more ominous."  Now the Ottawa Government releases this press statement:

The Canadian Food Inspection Agency (CFIA) is warning the public not to consume the various beef products described below because these products may be contaminated with E. coli O157:H7 bacteria. The affected products are being recalled as a result of the CFIA’s investigation and traceback conducted on contaminated beef involving Ranchers Beef Ltd. (Establishment 630), Balzac, Alberta.  There have been no reported illnesses associated with the consumption of these products.

This does seem to contradict the press release from the same government entity just the day before:

The Canadian Food Inspection Agency (CFIA) and the Public Health Agency of Canada (PHAC) are currently investigating possible linkages between E. coli cases that occurred earlier this summer in Canada. The investigation is examining 45 cases of E. coli O157:H7 that were found in New Brunswick, Quebec, Saskatchewan, Ontario and British Columbia. These cases were previously reported from July to September, 2007. As a result of these cases, eleven people were hospitalized and one elderly individual died.

However, according to the USA FSIS, there seems to be a “genetic link” to both the 40 people ill from the Topps outbreak and the 44 people ill and 1 death in Canada:

On October 25, the CFIA provided FSIS with PFGE patterns, or DNA fingerprints, from tests of beef trim from a Canadian firm, Ranchers Beef, Ltd., Canadian establishment number 630. This firm provided trim to the Topps Meat Company. While the firm, which had been located in Balzac, Alberta, ceased operations on August 15, 2007, some product remained in storage and was collected and tested by CFIA as part of the joint investigation of the Topps recall and as part of CFIA’s own investigation into 45 illnesses in Canada from E. coli O157:H7.

It is hard to imagine that our USDA/FSIS might be more competent that its Canadian counterpart. 

Remember, according the New Jersey AP, Topps products revealed three different E. coli O157:H7 genetic "fingerprints," according to Kenneth Petersen, an assistant administrator at the USDA’s Food Safety and Inspection Service. This means that although one of these fingerprints has been traced to Ranchers Beef, Ltd., in Canada, it will be interesting to see if we can track the other fingerprints to the source – Tyson, IBP, Cargill, others?  It will also be interesting to get legal jurisdiction over out of country corporations.

Also, recall the report from the New York Times, revealed that Topps sourced a significant amount of beef trimmings from countries like Australia, New Zealand, Canada and Uruguay – countries that FSIS has required little E. coli O157:H7 testing.  Will FSIS change this rule too soon?

So, FSIS has limited requirements that out of country producers test for E. coli.  And, we have learned during the Topps recall that Topps had cut back on its testing for E. coli.  It will be interesting to see if other meat companies have been doing the same.  Perhaps more testing at the retail (grocer store) would be helpful in tracking this ugly bug?  According to the FSIS website, “the agency still collects some samples from retail stores, but normally only when the retail store actually produces raw ground beef using trimmings from a cutting/boning operation conducted at the store.”  Perhaps it or someone should do more retail testing?

I also think we need to look at several other reasons for the spike in E. coli illnesses and recalls (in addition to testing product), such as: 1)  has the make-up of workers in slaughter plants changed in 2007?  Do we have less experienced workers?  2)  has cattle feed in 2007 changed significantly to allow greater growth of E. coli O157:H7?  3)  has global warming impacted the ecology of E. coli O157:H7?  Other ideas?